M.D. v. Indiana University Health Bloomington Hospital (mem. dec.)

MEMORANDUM DECISION
Jun 02 2015, 9:05 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy P. Payne James L. Whitlatch
Bloomington, Indiana Kathryn DeWeese
Bunger & Robertson
Bloomington, Indiana

IN THE
COURT OF APPEALS OF INDIANA

M.D., June 2, 2015

Appellant-Respondent, Court of Appeals Case No.
53A05-1411-MH-515
v. Appeal from the Monroe Circuit
Court.

Indiana University Health The Honorable Stephen R. Galvin,
Judge.
Bloomington Hospital,
Cause No. 53C07-1409-MH-309
Appellee-Petitioner.

Riley, Judge

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 STATEMENT OF THE CASE

[1] Appellant-Respondent, M.D., appeals the trial court’s order of forced

medication following a regular involuntary commitment order for a period

expected to exceed ninety days.

We affirm.

ISSUES

[2] M.D. raises three issues on appeal, two of which we find dispositive and which

we restate as:

(1) Whether the trial court violated M.D.’s due process rights during the

hearing on the petition to forcibly medicate M.D; and

(2) Whether the trial court erred by finding by clear and convincing evidence

that a forced medication order is necessary.

Appellee-Petitioner, Indiana University Health, Bloomington Hospital (IU

Health) raises one issue, which we restate as: Whether M.D. timely appealed

the trial court’s regular commitment order.

FACTS AND PROCEDURAL HISTORY

[3] On September 20, 2014, M.D. was admitted to IU Health after becoming

belligerent and combative at the consumption of several energy drinks and

other substances in a local strip club. The officer accompanying M.D. to IU

Health noted that M.D. “stated that he wanted to strangle someone, [he] also

made several comments that people were going to die + Satan was coming for
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 the world.” (Appellee’s App. p. 22). The officer concluded that M.D. “seemed

very violent towards other people” and opined that if M.D. “is not restrained he

will attempt to harm himself or others.” (Appellee’s App. p. 22). Dr. Kimberly

Irwin completed the Physician’s Emergency Statement, documenting that M.D.

“had a history of paranoid schizophrenia and became combative and belligerent

in public after consuming multiple energy drinks and possible drugs. His

mother claims he has been off his meds for 3-4 days. The patient is a danger to

himself and others.” (Appellee’s App. p. 24).

[4] On September 22, 2014, IU Health filed its petition for emergency detention of

mentally ill, which was approved by the trial court the same day. On

September 25, 2014, IU Health filed a report following emergency detention,

stating that Steven Goad, M.D. (Dr. Goad) had examined M.D. and found him

to be gravely disabled, requiring continuing care and treatment. That same day,

IU Health filed its petition for involuntary commitment. In its petition, IU

Health asserted that M.D. was suffering from a psychiatric disorder, as a result

of which he presented a substantial risk of hurting himself or others. The

petition elaborated that M.D. made threats that “people are going to die.”

(Appellee’s App. p. 2). In addition, the petition alleged that because of his

condition, M.D. is also gravely disabled and “displays very poor judgment.”

(Appellee’s App. p. 2). The physician’s statement accompanying IU Health’s

petition was completed by Dr. Goad. Dr. Goad affirmed that M.D. was

suffering from a psychiatric disorder and developmental disability which

impaired his ability to function. While he did not seek a forced medication

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 order, Dr. Goad requested a commitment for a period expected to exceed

ninety days.

[5] On September 30, 2014, the trial court conducted a hearing on IU Health’s

petition. At the hearing, Dr. Goad testified that he was M.D.’s admitting

physician and had examined M.D. approximately seven out of the ten days

M.D. was at IU Health. Dr. Goad explained that he had diagnosed M.D. with

a chronic adjustment disorder and a verbal learning disorder, as well as possible

attention deficit hyperactivity disorder. He elaborated that M.D.’s “inability to

think logically and to plan lead to chronic problems in relationships and

behavior[.]” (Transcript p. 6). M.D.’s episodes occur one after the other

because of M.D.’s inability to plan and relate reasonably and understand what

he just experienced. Based on this diagnosis, Dr. Goad believed M.D. to be

gravely disabled to the point where he cannot take care of himself and is more

“like a child who’s not able to manage for himself and needs [] a parent like

person to take care of them.” (Tr. p. 7). Dr. Goad added that, if the petition

was granted, M.D. would be discharged to Centerstone.

[6] Although M.D. realizes he needs help, M.D. testified that he self-medicates

with marijuana but plans to continue to see Dr. Goad upon his release. M.D.

informed the court that he needs to get away from his mother because his

mother “doesn’t want [him] to smoke weed so she’ll call the cops.” (Tr. p. 18).

He conceded to having been admitted to IU Health five times previously, and

attributed all of those admissions to his mother. At the conclusion of the

testimony, the trial court issued an order of regular commitment. Specifically,

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 the trial court found M.D. to be suffering from chronic adjustment disorder,

non-verbal learning disorder and determined him to be gravely disabled. The

trial court concluded M.D. to be in need of commitment for a period expected

to exceed ninety days. No forced medication order was entered.

[7] That same day, September 30, 2014, IU Health transferred M.D.’s commitment

to Centerstone. On October 1, 2014, M.D. was re-admitted to IU Health after

being notified by Centerstone that “M.D. has not been taking his meds and

needs to be in a locked facility for his own safety and the safety of others.”

(Appellee’s App. p. 12). On October 7, 2014, Perry Griffith, M.D. (Dr.

Griffith), a psychiatrist at IU Health, contacted the trial court:

The correct diagnosis for the patient in my opinion, is schizoaffective
bipolar type. He needs a forced medication of Invega Sustenna.
This would be for a dangerousness as he has threatened to kill people
with a machete while in an untreated bipolar episode.
The patient has been on a temporary commitment to Centerstone, and
to IU Health in the year 2013, therefore I am asking for a regular
commitment to the state of Indiana with a forced medication order of
Haldol and Invega. The Invega will be used and the benefits far
outweigh any negative side effects or there are no long-term side effects
to Invega. He has been associated with this medication in the past and
has taken it and has no problems with it.
(Appellant’s App. p. 7).

[8] Recognizing that an involuntary commitment order was already in place, the

trial court characterized Dr. Griffith’s letter as a request for a forced medication

order, and set the matter for a hearing on October 9, 2014. During the hearing,

the trial court took judicial notice of the testimony from the September 30, 2014

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 commitment hearing. Although M.D.’s counsel objected to “holding a

hearing,” she agreed to proceed after rejecting the trial court’s offer of a

continuance. Dr. Griffith testified about M.D.’s multiple prior admissions and

history of health diagnoses of psychosis and schizophrenia. M.D.’s counsel

objected during Dr. Griffith’s testimony on the ground that “[w]e’re here on a

forced medic, on a motion for a forced medication order. It’s [] the regular

commitment is not based on any kind of danger or violence and I think we’re

probably about to get into some hearsay as well.” (Tr p. 34). The trial court

overruled the objection. Dr. Griffith explained that M.D. needs “forced

medication for his underlying schizophrenia or schizoaffective bi-polar disease”

because he “doesn’t always take his medications as an out-patient.” (Tr. p. 36).

At the close of the evidence, the trial court issued an Amended Order of

Commitment – Forced Medication Order, ordering

1) [M.D.], is suffering from schizophrenic or schizoaffective disorder.
Following his commitment on September 30, 2014, he was
released. Within one day, it was necessary for him to be
readmitted to the hospital. He threatened to harm others, stating
that he would “kill with a machete.”
2) [M.D.] is clearly dangerous to others when not taking his
medication.
3) [M.D.] has a history of medication non-compliance.
4) [IU Health] is granted an order to treat [M.D.’s] condition with
Haldol Decanoate or Invega Sustenna. The benefits from these
medications outweigh any danger from their side effects.
(Appellant’s App. p. 4).

[9] M.D. now appeals. Additional facts will be provided as necessary.

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 DISCUSSION AND DECISION

I. Scope of Appeal

[10] Because IU Health presents this court with a procedural threshold question

involving the scope of the appeal before us, we will address its issue first to

determine the appropriate parameters of this appellate proceeding. At the

center of this appeal are the trial court’s two orders: the involuntary

commitment order issued on September 30, 2014, and the forced medication

order, entered on October 9, 2014. M.D.’s notice of appeal, filed on November

5, 2014, indicates that he is appealing the forced medication order.

Nonetheless, M.D.’s appellate brief in large part contests the appropriateness

and sufficiency of the trial court’s involuntary commitment order. M.D. asserts

that the involuntary commitment order was timely and properly appealed by

way of the forced medication order. In essence, M.D. maintains that because

the trial court in its forced medication order altered the grounds for involuntary

commitment—from a chronic adjustment disorder which made M.D. gravely

disabled to a schizoaffective disorder which made him dangerous to others—the

sufficiency of the involuntary commitment order can be contested. IU Health

objects to M.D.’s attempt to bring the involuntary commitment order into play

and asserts not only that the appeal is untimely but M.D. “acknowledged that

the purpose of the [October 9, 2014] hearing was to hear evidence on IU

Health’s Petition for Forced Medication Order.” (Appellee’s Br. p. 11).

[11] The record established that on September 30, 2014, the trial court issued an

involuntary commitment order for a period expected to exceed ninety days.

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 Barely seven days later, the trial court received a letter from Dr. Griffith, which

it characterized—uncontested by the parties—as a petition for a forced

medication order. At the commencement of the hearing on the petition, the

trial court reaffirmed Dr. Griffith’s request for a forced medication order.

During his testimony, Dr. Griffith elaborated on the process of seeking the

involuntary commitment and the grounds therefor, and testified on M.D.’s

schizoaffective illness and his dangerous behavior. M.D.’s counsel objected to

the testimony because “[w]e’re here on a [] motion for a forced medication

order. [] [T]he regular commitment is not based on any kind of danger or

violence[.]” (Tr. p. 34). The trial court overruled the objection after asking a

foundational question as to whether this is the kind of information the doctor

would rely on in reaching his diagnosis, to which Dr. Griffith responded

affirmatively. Later during the hearing, the trial court questioned Dr. Griffith

as to the fact that M.D. “does not always take his medication” and the different

types of medication M.D. has been prescribed in the past. (Tr. p. 36).

[12] Although the trial court allowed Dr. Griffith a lot of discretion in presenting

evidence on the grounds for an involuntary commitment—which were not

before the court at that time—it clearly attempted to keep the hearing on track

by asking pertinent questions regarding the request for a forced medication

order and the medical requirements for issuing such an order. While at first

glance the forced medication order might alter the grounds for involuntary

commitment by referencing M.D.’s schizoaffective disorder and dangerousness,

these comments should be interpreted in the light of the conditions for a forced

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 medication order. See In Re Mental Commitment of M.P., 510 N.E.2d 645, 647-48

(Ind. 1987) (concluding that one of the requisite elements is a current and

individual medical assessment of the patient’s condition). As such, we cannot

conclude that the trial court’s hearing on the petition for forced medication was

in fact a disguised hearing on M.D.’s involuntary commitment. Therefore, if

M.D. wanted to appeal the involuntary commitment order, he should have filed

a notice of appeal within thirty days of the trial court’s September 30, 2014

order, which M.D. failed to do. See Ind. Appellate Rule 9(A)(1).

[13] Even though M.D. concedes that his appeal to the involuntary commitment

order was filed outside the thirty day period, he relies on our supreme court’s

opinion in In the Matter of the Adoption of O.R., 16 N.E.3d 965, 971 (Ind. 2014),

in an attempt to present the evidentiary sufficiency of the commitment for our

review. In In the Matter of the Adoption of O.R., our supreme court clarified that

[t]he untimely filing of a Notice of Appeal is not a jurisdictional defect
depriving the appellate courts of the ability to entertain an appeal.
Instead, the timely filing of a Notice of Appeal is jurisdictional only in
the sense that it is a Rule-required prerequisite to the initiation of an
appeal in the [c]ourt of [a]ppeals. Timely filing relates neither to the
merits of the controversy nor to the competence of the courts on
appeal to resolve the controversy. . . . [T]he right to appeal having
been forfeited, the question [then becomes] whether there are
extraordinarily compelling reasons why this forfeited right should be
restored.
Id. at 971.

[14] We are mindful that “our appellate rules exist to facilitate the orderly

presentation and disposition of appeals . . . and [] our procedural rules are

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 merely means for achieving the ultimate end of orderly and speedy justice.” Id.

at 971-72 (quoting In Re Adoption of T.L., 4 N.E.3d 658, 661 n.2 (Ind. 2014)).

Even though a forfeited right to appeal can be restored by presenting

“extraordinarily compelling reasons,” we cannot condone its application in

what essentially amounts to a collateral attack on a previously issued final

judgment. See id. at 971. Granting an appellate review of the trial court’s

involuntary commitment order in the case before us would open the proverbial

floodgates as any final order at some point during a proceeding could be

contested by way of a collateral attack of the last order issued. Accordingly, we

limit our appellate review to the trial court’s forced medication order.1

II. Due Process Rights

[15] Continuing his characterization of the hearing on Dr. Griffith’s petition for

forced medication as a second commitment hearing, M.D. contends that his

due process rights were violated because the trial court failed to follow the

proceedings prescribed in Indiana Code section 12-26-7-4, the rights of subject

individuals during regular commitment proceedings.

[16] However, because we review the appeal to a forced medication order, we find

that Indiana Code chapter 12-26-2, governing the rights of persons during

voluntary and involuntary treatment of mentally ill individuals, is more

1
IU Health also contends that M.D.’s appellate brief was filed outside the thirty day period after notice of
completion of transcript. See Ind. Appellate Rule 45(B)(1)(b). However, M.D.’s brief is file-stamped
February 9, 2014, which was the final day to timely file his appellant’s brief.

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 appropriate to the case at hand. Specifically, Indiana Code section 12-26-2-2

provides:

Notice of hearings; receipt of copies of petitions or orders; presence
at hearings; application of section
Sec. 2 (a) This section applies under the following statutes:
***
(2) [I.C. §] 23-26-7 [involuntary commitment]
(b) The individual alleged to have a mental illness has the following
rights:
(1) To receive adequate notice of a hearing so that the
individual or the individual’s attorney can prepare for the
hearing.
(2) To receive a copy of a petition or an order relating to the
individual.
(3) To be present at a hearing relating to the individual. The
individual’s right under this subdivision is subject to the court’s
right to do the following:
(A) Remove the individual if the individual is disruptive
to the proceedings.
(B) Waive the individual’s presence at a hearing if the
individual’s presence would be injurious to the
individual’s mental health or well-being.
(4) To be represented by counsel.
[17] Reviewing the proceedings of the forced medication hearing, it is clear that

M.D. was granted all the rights afforded to him by statute. Dr. Griffith’s

request for forced medication was filed on October 7, 2014. The following day,

the trial court scheduled a hearing for October 9, 2014, and signed a transport

order to ensure M.D.’s attendance at the hearing. Hearing notices were also

sent to M.D.’s counsel and to IU Health, and the trial court “provided copies of

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 [Dr. Griffith’s letter] to the parties.” (Tr. p. 29). At the day of the scheduled

hearing, M.D. appeared in person and was represented by counsel. Although

the trial court was willing to grant M.D.’s counsel a continuance to prepare and

call witnesses, M.D.’s counsel declined, not knowing if it would be in her

“client’s best interest to ask for a continuance.” (Tr. p. 30). Accordingly, in

light of this evidence, we cannot conclude that M.D.’s due process rights were

violated.

III. Sufficiency of the Evidence

[18] Lastly, M.D. contends that there is “no clear and convincing evidence that a

forced medication order is necessary.” (Appellant’s Br. p. 11). Our supreme

court has addressed the issue of forced medication with antipsychotic drugs as

follows:

In order to override a patient’s statutory rights to refuse treatment, the
State must demonstrate by clear and convincing evidence that: 1) a
current and individual medical assessment of the patient’s condition
has been made; 2) that it resulted in the honest belief of the psychiatrist
that the medications will be of substantial benefit in treating the
condition suffered, and not just in controlling the behavior of the
individual; 3) and that the probable benefits from the proposed
treatment outweigh the risk of harm to, and personal concerns of, the
patient. At the hearing, the testimony of the psychiatrist responsible
for the treatment of the individual requesting review must be presented
and the patient may present contrary expertise.
Equally basic to court sanctionable forced medications are the
following three limiting elements. First, the court must determine that
there has been an evaluation of each and every other form of treatment
and that each and every alternative form of treatment has been
specifically rejected. It must be plain that there exists no less restrictive
alternative treatment and that the treatment selected is reasonable and

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 it the one which restricts the patient’s liberty the least degree possible.
Inherent in this standard is the possibility that, due to the patient’s
objection, there may be no reasonable treatment available. This
possibility is acceptable. The duty to provide treatment does not
extend beyond reasonable methods. Second, the court must look to
the cause of the commitment. Some handicapped persons cannot have
their capacities increased by anti-psychotic medication. The drug
therapy must be within the reasonable contemplation of the
committing decree. And thirdly, the indefinite administration of these
medications is not permissible. Many of these drugs have little or no
curative value and their dangerousness increases with the period of
ingestion. The court must curtail the time period within which they
may be administered. If a patient does not substantially benefit from
the medication, it should no longer be administered.
In Re Mental Commitment of M.P., 510 N.E.2d 645, 647-48 (Ind. 1987).

[19] Following the involuntary commitment hearing on September 30, 2014, M.D.

was transferred to Centerstone. However, M.D. was re-admitted to IU Health

on October 1, 2014, because he had “not been taking his meds and needs to be

in a locked facility for his own safety and the safety of others.” (Appellee’s

App. p. 12). During the hearing on IU Health’s petition for forced medication,

Dr. Griffith initially testified about his medical assessment of M.D.’s mental

illness. He explained that M.D. has a long history of previous admittances on

the basis of schizophrenia. Based on his current observation of M.D., Dr.

Griffith reaffirmed the earlier diagnosis and informed the trial court that M.D.

“clearly becomes violent and threatening[.]” (Tr. p. 33). Dr. Griffith

elaborated that M.D. “needs forced medication for his underlying

schizophrenia or schizoaffective bi-polar disease of Invega Sustina or Haldol

Decanoate.” (Tr. p. 36). Because M.D. does not always take his medications

as an out-patient, Dr. Griffith recommended a monthly injection of Invega

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 Sustina. Based on previous experience, M.D. “does very well” with that: “[h]e

is not threatening[,] he does not come in the Emergency Room by police

threatening to kill people at business establishments with a machete. His

thinking becomes clearer and he becomes a more logical reasonable person.”

(Tr. p. 37). Turning to Invega’s potential side effects, Dr. Griffith explained

that “there are no long term side effects that we know of” and the “[b]enefits for

him far outweigh any risks.” (Tr. pp. 38, 39).

[20] The limiting factors outlined in Mental Commitment of M.P. are present as well.

Due to M.D.’s history of refusing to take his medications and, at times, self-

medication with marijuana, Dr. Griffith considered it necessary to request a

forced medication order to treat M.D.’s mental illness. A less restrictive

alternative was attempted by his transfer to Centerstone, but this rapidly proved

to be unsuccessful. Although the trial court’s order is silent as to the time

period within which the forced medication order will apply, the order is time-

limited by statute. Pursuant to Ind. Code § 12-26-15-1(a), a commitment order

must be reviewed at least annually. Moreover, the trial court directed IU

Health to “submit a Periodic Report not later than September 30, 2015.”

(Appellant’s App. p. 6). “While it would have been better for the trial court to

include the periodic report deadline in its latest . . . forced medication order, the

statutory review requirement exists regardless of whether the trial court’s order

mentions it.” See J.S. v. Center for Behavioral Health, 846 N.E.1106, 1115 (Ind.

Ct. App. 2006), disapproved of on other grounds by Civil Commitment of T.K. v. Dep’t

of Veterans Affairs, 27 N.E.3d 271 (Ind. 2015). Accordingly, we conclude that IU

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 Health presented clear and convincing evidence that M.D. was in need of a

forced medication order.

CONCLUSION

[21] Based on the foregoing, we conclude that M.D. did not timely appeal the trial

court’s involuntary commitment order. With respect to the trial court’s forced

medication order, we conclude that M.D.’s due process rights were not violated

during the proceedings and IU Health presented clear and convincing evidence

to support the issuance of the order.

[22] Affirmed.

[23] Bailey, J. and Barnes, J. concur

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